F I L E D

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

NOV 26 1997

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
MARIANO HERBERT HERRERA,

No. 97-2185
(D.C. No. CIV 97-543 JC/LFG)
(D. N.M.)

Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.

This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*

Mr. Mariano H. Herrera, an inmate appearing pro se, appeals the district
court's denial of his 28 U.S.C. 2255 motion to correct his sentence, in which he
requested a one-level downward adjustment under United States Sentencing
Guidelines (U.S.S.G.) 3E1.1(b). We dismiss this appeal because we deny Mr.
Herrera's application for a certificate of appealability pursuant to 28 U.S.C.
2253(c).

Mr. Herrera pleaded guilty to armed robbery in violation of 18 U.S.C.

2213(a) and (d), and aiding and abetting in violation of 18 U.S.C. 2. He was
subsequently sentenced in October 1990 to 220 months incarceration followed by
five years supervised release. In computing Mr. Herrera's term of imprisonment,
the district court granted a two-level downward adjustment to Mr. Herrera's base
offense level pursuant to U.S.S.G. 3E1.1(a) for acceptance of responsibility.
Effective November 1, 1992, the United States Sentencing Commission amended
3E1.1(b) to allow for an additional one-level downward adjustment if the
defendant met certain requirements. See Amendment 459, U.S.S.G. App. C t 339
(1995); U.S.S.G. 3E1.1(b).

Mr. Herrera filed a 28 U.S.C. 2255 motion in the United States District
Court for the District of New Mexico in April 1997 to vacate, set aside or correct
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his sentence, contending he was entitled to an additional one-level downward

adjustment because Amendment 459 to 3E1.1(b) applied retroactively. The
district court denied Mr. Herrera's 2255 motion. The district court also ordered
tht no certificate of appealability be issued.

Three issues are raised on appeal: (1) may Mr. Herrera proceed in forma
pauperis; (2) did the district court err in denying his certificate of appealability;
and (3) did the district court err in denying his 2255 motion. We grant the
petition to proceed in forma pauperis since Mr. Herrera has provided sufficient
proof of his inability to pay the required fees. However, we affirm and dismiss
this appeal because we deny his application for a certificate of appealability. Mr.
Herrera has failed to make the substantial showing of the denial of a
constitutional right required for issuance of a certificate of appealability under 28
U.S.C. 2253(c).

The Antiterrorism and Effective Death Penalty Act requires a certificate of

appealability be granted prior to a prisoner's appeal of a denial of a 28 U.S.C.
2255 motion. 28 U.S.C. 2253(c)(1)(B). The certificate of appealability may
be issued only if the applicant has made "a substantial showing of the denial of a
constitutional right." 28 U.S.C. 2253(c)(2).
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Mr. Herrera contends he is entitled to a one-level downward adjustment to

his sentence under U.S.S.G. 3E1.1(b), because Amendment 459 applies
retroactively. Mr. Herrera's claim is without merit. We construe Mr. Herrera's
2255 motion as a motion under 18 U.S.C. 3582(c)(2). Under 18 U.S.C.
3582(c)(2), upon a defendant's motion, a district court may reduce a term of
imprisonment when a sentencing range has subsequently been lowered by the
United States Sentencing Commission. However, the court can only apply the
lower sentencing range retroactively after considering the factors listed in 18
U.S.C. 3553(a), and if the reduction is consistent with applicable policy
statements issued by the Commission. 18 U.S.C. 3582(c)(2).

In U.S.S.G. 1B1.10(a), the policy statement on retroactivity of

amendments, the Commission limited retroactive application of lowered
sentencing ranges to amendments listed in 1B1.10(c). Amendment 459, which
Mr. Herrera contends applies retroactively, is not listed. See U.S.S.G. 1.B1.10(c).
If an amendment is not listed, retroactive application of that amendment is not
consistent with the Commission's policy statement. See id.; United States v.
Avila, 997 F.2d 767 (10th Cir. 1993). Therefore, U.S.S.G. 3E1.1(b), as
amended, cannot be applied retroactively to reduce Mr. Herrera's sentence.
Consequently, Mr. Herrera has failed to make a substantial showing of the denial
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of a constitutional right, and accordingly, we deny his application for a certificate

of appealability.

DISMISSED.

Entered for the Court

WADE BRORBY
United States Circuit Judge

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